Integrity Is Paramount When Engineers Act as Expert Witnesses

Dec 1, 2018

Situation

A complaint is submitted to ASCE's Committee on Professional Conduct (CPC) concerning a paper published in an ASCE journal. The subject of the paper is the installation of sediment control structures in a tributary of a major U.S. river, structures that the paper's author--a university professor and ASCE member--alleges are responsible for increased flooding in the region. The complainant, who is an employee of the state agency responsible for the design and installation of the structures, claims that the author had fraudulently manipulated his analysis in order to reach his desired conclusion.

The complainant states that she had read the paper thoroughly after its publication and in so doing had identified a crucial mathematical error in one of the author's calculations. According to the complainant, when this error was corrected, the resulting calculation yielded a fi nding that directly contradicted the author's theory-- the sediment control structures had no impact on local flooding. The complainant states that she reported the erroneous calculation to the journal's editor, who in turn contacted the paper's author for a response.

Some months later, the complainant learned that the author had submitted a correction for publication in the ASCE journal. However, instead of acknowledging that the paper's original conclusion was flawed, the complainant says that the author simply changed several of the fundamental assumptions used in his calculations-- modifying the input parameters so that the revised calculations still supported a conclusion that the river structures had increased local flooding. According to the complainant, in order to make his calculations fit the conclusion, the author had used assumptions so extreme that they "defied basic hydraulic theory and simple common sense."

The complainant notes that the author also operates a private consulting practice, in which capacity he has frequently provided expert witness testimony on the impacts of human-initiated alterations to rivers. She opines that the author is a so-called "hired gun" for plaintiffs' attorneys and that his aim in manipulating his analysis is to produce a peer-reviewed paper that will bolster the credibility of his arguments and increase the likelihood of obtaining work as an expert witness in future litigation.

Question

Did this member's actions violate the ASCE Code of Ethics?

Discussion

Of all areas of practice in which engineering expertise may be applied, perhaps none is quite as fraught with the potential for "bad blood" as the legal arena, where engineering expert witnesses critique the actions or decisions of other engineers, or where litigants pit the professional judgments of multiple expert witnesses against one another. Given the high financial and even professional costs of an unfavorable verdict, it is perhaps small wonder that bad blood between engineers in such cases can often give rise to claims of unethical conduct.

One of the most obvious sources of ethical scrutiny for expert witnesses stems from the disconnect between engineers' roles and their financial compensation. Under U.S. rules of evidence, an individual is permitted to testify as an expert witness when it is deemed that the individual possesses "scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue." In other words, an expert witness is expected to serve as an impartial and objective adviser, offering professional expertise for the benefit of the court itself, not for any particular party.

Yet in most cases, expert witnesses are paid for their testimony by parties to litigation, meaning that the experts' clients have a strong interest in obtaining professional reports and testimony that advance their own perspectives of cases. If a party locates an engineering expert whose objective and reasoned analysis supports the client's position, then the compensation itself should not raise an ethical question. But if an engineering expert's viewpoint is set by whomever is paying the bill, then it is certainly doubtful this expert has fulfi lled his/her duty of objective service to the court. And if an engineer intentionally slants a professional analysis or conclusion in the hope of future expert work, the engineer's actions may similarly invite ethical scrutiny.

Fundamental Canon 3 of the ASCE Code of Ethics states: "Engineers shall issue public statements only in an objective and truthful manner." While the phrase "public statements" may seem to limit the application of this canon, guideline b extends this ethical obligation to all "professional reports, statements, or testimony" and requires that engineers "include all relevant and pertinent information in such reports, statements, or testimony."

Additionally, guideline a prohibits engineers from participating "in the dissemination of untrue, unfair, or exaggerated statements" on engineering matters, while guideline e instructs engineers to "avoid any act tending to promote their own interests at the expense of the integrity, honor, and dignity of the profession." Finally, to the extent that an untruthful statement is harmful to another engineer, this conduct may fall short of the dictates of guideline g under Canon 5: "Engineers shall not maliciously or falsely, directly or indirectly, injure the professional reputation, prospects, practice, or employment of another engineer or indiscriminately criticize another's work."

When contacted by the CPC, the ASCE member flatly denied any attempt to falsify or manipulate the paper's conclusion. While acknowledging that he had changed the input parameters in his corrected paper, the author said that these new parameters were consistent with assumptions reported elsewhere in the scientific literature. He claimed that his paper had not been intended to show conclusively that the structures were connected to flooding, but only that it was possible; therefore, he felt his argument was supported if any reasonable set of variables demonstrated a link.

The CPC also solicited input from the editor of the ASCE journal that had published the paper, who said he thought the paper's subject matter represented an issue on which reasonable engineering experts could disagree. He noted that, by coincidence, the journal had recently accepted another paper on the same topic, one whose conclusion might best be described as staking out a middle ground between the complainant's and the author's opposing views. The editor expressed concern about the broader impacts of the CPC's investigation, saying that authors might be dissuaded from publishing worthwhile, if controversial, papers for fear of similar consequences. Finally, he noted that the journal invited readers to submit discussions on published papers, and if the complainant objected to the author's choice of parameters, she could use that forum to call upon the author to defend this choice, thereby airing the debate for open consideration within the scientific community.

Based on its review of the case, the CPC did not feel that it could conclusively establish that the author had violated the ASCE Code of Ethics. The CPC voted to dismiss the case and informed the parties of its decision. Consistent with the journal editor's recommendations, the Committee also expressed the hope to the complainant that she would consider submitting comments on the paper to ASCE's journal for consideration as a published discussion.

-Tara Hoke

Tara Hoke is ASCE's general counsel and a contributing editor to
Civil Engineering.

Members who have ethics questions or would like to file complaints with the Committee on Professional Conduct may call ASCE's hotline at (703) 295-6151 or (800) 548-ASCE (2723), extension 6151. The attorneys staffing this line can provide advice on how to handle ethics issues or file complaints. Please note that individual facts and circumstances vary from case to case, that some details may have been altered for purposes of illustration or confidentiality, and that the general summary information contained in these case studies is not to be construed as a precedent binding upon the Society.